Title IX and Sexual Misconduct Discipline Defense

Sexual harassment and assault allegations can have a devastating effect on the accused. They ruin lives, reputations, and careers. When a student or employee of a college or university is accused of sexual misconduct, these typically fall under Title IX violations which are handled by a separate office in the school to comply with federal regulations. These complaints are investigated by the school's Title IX coordinator. The penalties are usually swift and severe, and the repercussions for the accused student may last for years—affecting their ability to complete their education or even get a decent job.

Title IX rules allow any student to file a complaint against another student alleging sexual misconduct. While sexual harassment and assault are truly horrific offenses, many students end up being falsely accused of Title IX violations, whether due to a misinterpretation of intent, a lapse of judgment, or someone trying to be spiteful. Schools are under heavy pressure to enforce Title IX rules because they could lose federal funding if they don't. Accused students could easily face suspension or expulsion—not to mention a permanent notation on their academic record—without any real understanding of how to defend against the charges.

Pennsylvania students and parents alike may be completely at a loss to address Title IX accusations because they are unfamiliar with the investigative and disciplinary processes involved. And because some Title IX violations are also crimes, accused students may even face criminal charges alongside the school's disciplinary process. In many cases, the only way to minimize the threat is to have competent legal representation.

For Title IX complaints, it is best to find an attorney who has experience both as a Title IX attorney-advisor and as a criminal defense attorney in case criminal charges arise from these accusations. Pennsylvania-based criminal defense lawyer Attorney Joseph D. Lento has been recognized as an expert nationwide in Title IX school discipline defense cases. The following information is for you if you are a Title IX student or parent.

Title IX - What Is It?

Title IX, a federal civil rights statute, effectively prohibits any form of gender-based discrimination in any educational institution that receives federal funding. Title IX was created to ensure that all students, regardless of gender, have equal access to school facilities. The vast majority of colleges and universities, public and private alike, comply with Title IX because they all receive federal funding.

Any school that fails to uphold Title IX protections must immediately acknowledge and rectify the problem—and that includes punishing and/or removing students who allegedly violate the Title IX rights of another student due to sexual misconduct. These institutions may lose some or all of their federal funding if they fail to comply quickly.

Title IX not only addresses gender-based discrimination or gender inequality it also provides protection across a wide swath of possible offenses. These include, but may not be limited to:

• Sexual harassment
• Sexual violence (includes rape, sexual assault, sexual battery, abuse, and sexual coercion)
• Bullying based on gender
• Discrimination in school policies against particular genders
• Employment discrimination
• Unfair treatment of intercollegiate female athletes (scholarships, funding, programs, etc.)
• Students and employees in STEM (science, technology, engineering, and mathematics) related fields who may be denied equal opportunities

Title IX & Sexual Misconduct

Since Title IX was passed, subsequent government administrations have expanded the definitions of gender offenses to include sexual misconduct. Today, many Title IX cases deal with students and school staff who are accused of sexual harassment, for example. These Title IX crimes are punishable by schools. Schools could be held responsible if they fail to address sexual misconduct allegations in a timely manner.

Title IX Coordinators' Duties

Every federally funded school must have a separate office with a designated Title IX Coordinator. This coordinator's job is to ensure the school complies with Title IX rules and address any violations by administrators, students, faculty, or employees. Title IX coordinators are the gatekeepers to prevent and address gender discrimination on campus. They have many duties under federal law, such as being in charge of monitoring programs that fight against any instance where women may be victims of sex-based harassment/bullying. These individuals also administer disputes between students involved with sexual assault cases.

Title IX coordinators should also ensure the school provides equal protections to both the accuser (claimant) and the accused (respondent) in sexual misconduct cases. Sadly, these duties are often overlooked or forgotten, often to the disadvantage of the accused.

Let's look at some specific duties of the Title IX coordinator since this person plays a key role in any sexual misconduct complaint.

Title IX Compliance

The primary responsibility of a Title IX coordinator is to ensure that Title IX policies are implemented across all departments within the college or university. All college students and employees are responsible for abiding by these policies during their entire time on campus. The Title IX coordinator collaborates with other departments to ensure policies are followed, and there is no discrimination or sexual misconduct.

Disseminating Title IX Policies

The Title IX Coordinator is responsible for ensuring that all Title IX students, teachers, and staff are aware of the regulations and policies surrounding Title IX. As the rules are updated, the coordinator will keep the campus informed about any policy or rule changes. This information may be disseminated by the coordinator via presentations, emails, posted notices, and other means. While it is unlikely that all students will be provided with a complete list and description of Title IX regulations, students learn a lot about Title IX rights and how they can protect themselves from discrimination based upon gender.

Students need to be aware of their rights under Title IX in order to make full use of them. This not only includes protections for alleged victims of misconduct or discrimination but also protections for the accused while complaints are processed. If a Title IX coordinator fails to inform students about their rights, it can lead to unfair accusations and place the accused at a distinct disadvantage in Title IX investigations or hearings.

Nurturing a Safe Campus Culture

Coordinators are responsible for creating a campus culture that prevents sexual violence and discrimination on college campuses. This is done by providing training to educate students on avoiding behaviors that fall under the umbrella of sexual misconduct, as well as helping students avoid becoming victims of sexual misconduct in relationships, domestic violence, stalking, and other similar offenses. The Title IX coordinator should also conduct a campus climate survey periodically to evaluate whether campus programs are effective and gather data that can be used to improve them.

Investigations & Disciplinary Measures

Title IX coordinators must investigate all alleged Title IX violations and implement disciplinary actions where necessary. Any report of sex discrimination or allegations of sexual misconduct will be handled by the Title IX coordinator. These investigations can include but are not limited to:

• Interviews with all parties
• Ensuring all parties are aware of the grievance procedure
• Establishing the credibility of witnesses
• Objectively evaluating the evidence
• Deciding on the appropriate disciplinary measures
• Helping victims of sexual misconduct and discrimination access resources to help them

Because Title IX policies are designed to protect the victims of sexual misconduct, Title IX investigations are often unfairly conducted when it comes to those accused of sexual harassment or sexual assault. This is partly because sexual misconduct accusations carry such a stigma that the accused are often presumed guilty regardless of any policies intended to prevent it. The accused have fewer rights and protections in Title IX disciplinary cases than they would in a court of law.

If you are notified that you have been accused of Title IX violations, it is normal to feel anxious or concerned because of the stigma involved. While the Title IX coordinator has the responsibility to protect your rights as well as those of the complainant, the truth is that Title IX coordinators tend to support the accuser more than the accused. Some coordinators don't even consider that you also have rights and protections under Title IX, and if you don't know these rights yourself, you could be unfairly penalized with severe consequences. It is important to seek the advice of an attorney-advisor to ensure your rights are protected.

What Are the Most Common Types of Sexual Misconduct in Title IX?

Different colleges and universities use different terminology to define Title IX violations. Although "sexual harassment" and "sexual misconduct" can be understood as broad terms, schools will often bring specific charges against students and others who are accused of violating Title IX. Schools don't limit themselves to charging only one or two offenses. You could face multiple charges if you are accused of sexual misconduct. You could be charged with Title IX violations for the following:

• Non-Consensual Sexual Contact—this is sexual contact where consent has not been definitively established by all participants.
• Offensive Touching—touching another person in a way that could be interpreted as sexual without their express consent.
• Unwanted Sexual Advances—unwelcome gestures intended for sexual favor or gratification, particularly those that are aggressive or physical in nature.
• Sexual Assault, Battery, or Coercion—this encompasses any unwanted or forced sexual contact (including rape).
• Dating Violence –committing an act of violence against someone with whom you are romantically or intimately involved.
• Sexually Suggestive Language—i.e., innuendos, sexually suggestive jokes, catcalls, etc.
• Derogatory or Sexist Remarks—making comments about another person that are insulting, demeaning, sexist, gender-related, or stereotypical.
• Gender-Based bullying—acts of bullying that directly or indirectly relate to gender or sexual orientation could be subject to Title IX enforcement.
• Unauthorized Photo/Video—the act of taking and disseminating explicit photos, audio, or videos of someone without their consent.
• Electronic Communications Harassment—use of electronic communications to send demeaning or sexually explicit comments, images, and other information directly to victims or others. Text messages, email, and social media are all examples of electronic communications.
• Voyeurism—the practice of getting sexual pleasure from watching others, usually without their consent. Voyeurism is a form of sexual exploitation.

What Does a Title IX Investigation Look Like?

Title IX regulations require schools to investigate any allegations of sexual misconduct and provide solutions. Title IX coordinators need to ensure that everyone has easy access to the procedures and guidelines of the institution. It's important to understand at the outset that the school's Title IX investigation is not a legal probe, nor does it involve possible criminal charges. If criminal charges result (which happens only rarely), they will happen separately from the school system. Rather, the school's investigation focuses strictly on whether Title IX violations occurred and how to penalize the perpetrator if they did occur.

Deadlines for Reporting and Institutional Response

There is no statute of limitations at American colleges or universities that limits when Title IX complaints and allegations can be filed. Some complaints have even been filed years after the alleged victim left the school. Schools may pursue these older complaints out of concern that they might receive legal pushback from the victim. They may also be considering current students who are aligned with complainants' interests on campus as well as advocacy groups for Title IX respondents' rights.

While many schools investigate Title IX complaints regardless of when they occurred, a few schools do have a reporting deadline for Title IX complaints, which is generally within 3-6 months after the alleged incident occurred. Schools with a reporting deadline have a policy that includes a disclaimer for any complaints received after the deadline if the claimant can prove good cause. Reporting deadlines for schools should NOT be confused with the complaint deadlines of the Department of Education Office of Civil Rights, the governmental agency that oversees Title IX compliance in schools, colleges, and other institutions that are funded by the federal government. If a claimant is bringing a case against the school for Title IX discrimination, or if the school has not adequately addressed their sexual misconduct complaints, they can file a complaint directly with the DOE-OCR. Unless they have good cause to waive this restriction, the DOE-OCR only pursues complaints regarding sexual discrimination within 180 days of any incident.

Notification to All Parties

The Title IX coordinator must notify all parties affected that an investigation is underway into a Title IX complaint. Notifications will include:

• A written summary that includes details about the misconduct allegations
• A summary of the school's policies which have allegedly been violated
• A list of fundamental rights that all parties have access to
• Name and contact information of the investigators, as well any department or person that can be reached by a party to discuss the complaint
• The date and time of any events scheduled in connection with the investigation, if applicable

Individuals who have been notified that they are facing a Title IX investigation are advised to contact an attorney with specific experience in school Title IX cases. To ensure adequate preparation time, it is important to get advisory representation quickly.

Deciding on Interim Measures

The coordinator will determine whether interim measures are necessary. For example, the coordinator may issue a "no-contact" order to prohibit communication between respondent and complainant in cases where they might come across one another during daily life. Altering campus housing arrangements and modifying class schedules are two additional examples of possible interim actions.

Gathering Evidence and Intake Meeting

The Title IX investigator will start compiling evidence that is relevant to the complaint. These may include collecting text messages, voice messages, and interviews with witnesses. Coinciding with this step, the investigator will schedule an initial interview called an “intake meeting” with the respondent and complainant separately. This is your first opportunity to respond to the complaint and answer questions. All documentation and contact information must be presented for any witnesses you would like to testify on your behalf. You may have an attorney-advisor present at this interview in order to assist you.

Although schools have some autonomy in developing their processes, federal guidelines emphasize the importance of setting up an equitable investigation that allows both sides equal access. Schools must ensure there are no reasonably perceived conflicts of interest in the proceedings.

Option for Informal Resolution

An institution may accept an informal resolution to a complaint in certain instances, provided that both the parties agree to the terms. A mediation process is often used to help the parties reach an amicable resolution. A lawyer-advisor can help you negotiate an informal solution as an alternative to harsher penalties.

Formal Hearing

If no informal resolution is offered or reached, the school will summon all parties and their advisors to a hearing designed to enforce Title IX processes. Hearings do not constitute trials and are not intended to imitate them. The rules were modified by the Department of Education during the Trump administration to require open Title IX hearings complete with closing/closing statements, witness testimonies, and cross-examination of all witnesses who wish their testimony to be considered. The Biden administration suspended the rule in question pending further review. Schools are currently free to decide on the hearing policies and rules as they see fit (often to the detriment of the accused).

Written Summary and Sanctions

The Title IX investigator will create a written summary of the results of the investigation and hearing to be sent to all parties, along with any sanctions to be imposed on the respondent. If the investigator concludes that the accused has committed sexual misconduct or harassment, the penalty is typically suspension or expulsion.

Appeals

Although it is not required, many schools allow either party to appeal decisions before becoming final. Most institutions require notice of intent to appeal within a reasonable period. A Title IX attorney-advisor can assist with this step.

What Information Do I Need About Title IX's Disciplinary Process at My School?

There are different procedures that universities and colleges use to investigate Title IX complaints which can have a significant impact on how the case will be resolved. The respondent to Title IX charges should become familiar with the Title IX policies and procedures of the school. These policies can be found in the school's code of conduct or student manual.

Specifically, accused students need to understand their own rights and responsibilities under Title IX as well as the limits on due process at the school.

Investigation Models

One of two models will be used by most schools to conduct Title IX investigations: the traditional disciplinary hearing model or investigator model. Knowing which model your school uses can affect how you will prepare your own defense.

The traditional hearing system allows for the investigation and the hearing to be conducted separately. The investigation may be conducted by campus police, public security, and/or an appointed investigator. If sufficient evidence is found to support Title IX charges, the respondent has the right to request a hearing before an adjudicator or panel with live witnesses and presentation of evidence. A hearing panel or hearing officer will determine if a respondent has committed the offense and impose any appropriate sanctions or penalties.

With the investigator model, a school employee or outside investigator or team of investigators will be appointed to conduct Title IX investigations. The investigator(s) interviews both the complainant and respondent, talks to witnesses, and reviews the evidence, then determines whether the respondent is responsible and decides on a penalty. Some schools use a mixed model where the investigator simply presents their findings to a separate panel and makes recommendations, and it's up to the panel to decide whether to accept or reject those findings and recommendations.

(Per the Title IX Final Rule, K-12 schools can opt to determine responsibility based on an investigation, whereas higher education institutions must determine responsibility via a hearing process.)

What Are the Possible Sanctions in a Title IX Case?

Title IX sanctions are typically severe for students who are found to have committed sexual misconduct, with few exceptions. Even students who have not actually been accused of sexual assault could find themselves suspended or expelled even for lesser allegations like harassment, stalking, or verbal abuse. Schools that are already under investigation for federal Title IX investigations or who have suffered negative publicity about past events may be more likely than others to impose severe sanctions even for so-called minor Title IX infractions.

Does the School Automatically Believe the Complainant When He or She Files Title IX Cases?

Not always. Title IX is arguably designed to protect the complainant, so the process is often biased to favor the complainant's view and put the accused at a disadvantage. However, the school will be more likely to consider the testimony of the respondent if the respondent makes a compelling defense on their own behalf. Schools are under pressure to protect the victims of Title IX violations, but they also recognize they could also be exposed to legal liability for unfairly handling Title IX cases—and they wish to avoid lawsuits at all costs. Thus, a respondent who has prepared a compelling defense is more likely to prevail on the school, especially if they can prove they have been unfairly accused.

Possible Collateral Consequences for Students Found Guilty of Title IX Violations

If a student is accused of Title IX sexual misconduct, it could result in a wide range of negative repercussions for them besides the penalties themselves. Even during the investigation phase, an accused student could face complications. These are the most common collateral consequences a student may face.

Restrictions & Limitations Due to Interim Measures

At the beginning of the Title IX disciplinary process, the administration may implement interim measures as a way of protecting the alleged victim. A "no contact" order is one common interim measure that prohibits communication between the parties. A no-contact order is similar to a protective order or restraining order used in domestic violence cases in that it restricts the respondent's ability to be within proximity to the complainant. The provisions of a no-contact order may hinder the respondent's participation in student organizations, social membership in fraternities and sororities, or athletic participation. Sometimes, a no-contact order can even prevent the accused student from attending certain classes to avoid the complainant.

Suspension or Dismissal

The school may suspend or dismiss the accused if it finds that the respondent has violated Title IX policies. If so, the student may lose all academic credit as well as money that was already paid for tuition, food, and housing. Students who were working at the university when sanctions were imposed will not be eligible to continue employment. Other consequences may include losing eligibility to financial aid, merit scholarships, and athletic scholarships.

Note on the Student's Academic Records

Many schools will place a notation in the student's academic records regarding sexual misconduct and punishment. In some cases, this notation can stay on the record indefinitely. An accused student who wants to continue their education at a different school may have trouble getting in due to past disciplinary records. In addition, students might also encounter problems with applications that require disclosure of prior disciplinary infractions. Graduate programs such as law school or medical school may require students to sign an authorization to waive their privacy rights that could prevent disclosure. Ultimately, this negative notation could hinder the student's ability to further their education, earn advanced degrees, or even get hired. Even if there is no notation, a suspension can leave a gap on a transcript that may need to be explained in the future.

Can I Appeal a Title IX Decision?

Title IX does not require schools or colleges to grant either the respondent or the complainant the right to appeal, although many do. However, the Office of Civil Rights of the Department of Education (DOE-OCR) requires that both complainants and respondents receive equal treatment by the school if Title IX appeals are allowed.

The DOE-OCR recommends that Title IX appeals be used if there is a procedural error or previously unavailable evidence that might have affected the outcome.

Schools that provide an appeals process for Title IX compliance must ensure equal access and fairness for both sides. The review process must also be identical regardless of whether the complainant or respondent has filed the appeal. If a college or university allows the respondent to appeal a suspension that is based on a finding, they must allow the complainant to appeal the suspension.

Respondents typically have a very short window of time to file an appeal once the school has reached a decision on a Title IX investigation. Sometimes the appeals process is complicated, and sometimes an appeal may not be the best option. A Title IX attorney-advisor can help you decide the best way to proceed with any appeal.

How Can an Attorney/Advisor Help With Title IX Disciplinary Cases?

Title IX cases can be intimidating and complicated, especially for students accused of sexual misconduct. Absent expert guidance, an accused student could be dismissed or suspended before they even understand how to respond to the claims.

Attorneys are generally not allowed in an official capacity with Title IX cases because they are not strictly legal proceedings. However, you have the right to hire an attorney who can help you as an advisor. A skilled attorney-advisor can assist you in many ways during Title IX cases. They can help you gather evidence and witnesses to support your case, as well as counsel you on how you should conduct yourself throughout the process.

Here are some of the advantages you have by hiring an experienced attorney-advisor.

Complete Knowledge of Title IX Process

Experienced attorney-advisors will be fully familiar with Title IX procedures at the respondent's school as well as all federal and state laws, regulations, and rules that govern them. Title IX legislation provides a framework for schools to investigate cases of sexual harassment and assault. Both the accused and the accuser are promised certain protections in these proceedings under federal and state law. However, while accused students should be granted more protections for serious offenses, Title IX procedures often do not give the accused the right to cross-examine their accuser. A skilled attorney understands the system and its limitations and can help you maximize your chances of getting a fair hearing for your case.

In-depth Investigative Skills

Most college students don't have any experience investigating cases—but an attorney-advisor does. During the investigative phase, a good attorney-advisor can provide key expertise to help you gather the evidence you need to defend your reputation and counter the allegations.

Additional Layer of Accountability for the School

As an advisor, a lawyer will help ensure that the college or university adheres to its own rules and regulations. Sometimes schools have been accused of destroying evidence in sexual assault or harassment cases to deny the accused a fair hearing. To prevent this possibility, a good attorney-advisor may find it necessary to send a "litigation hold" letter to the school outlining their role in the case and warning them that if they refuse to preserve evidence or comply with any regulations, they could be sued. Indirectly, it sends a signal to the university or college that you are willing to fight for their rights.

What to Do if You Are Accused of Title IX Sexual Misconduct

When you are first notified of a Title IX complaint against you, you must first understand that you are entering a process that puts you at an immediate disadvantage. Even if you have been falsely accused, you are still at risk of severe penalties that could derail your education and your career. At most schools, you can be found guilty of sexual misconduct and punished if the school believes there is at least a 50 percent probability that you committed the offense. You can see the dangers of going it alone, considering that many college students don't know how to navigate school disciplinary processes. Follow these steps to avoid possible serious consequences and protect your future.

Call an experienced attorney-advisor immediately.

A competent legal advisor with experience in similar cases will increase your chances of successfully navigating the Title IX disciplinary process. Your advisor will help you protect your rights as well as your reputation.

Gather evidence in support of your case.

Don't assume that it's up to the school to prove you guilty “beyond a reasonable doubt.” That standard of proof is virtually nonexistent in Title IX hearings. Start immediately to collect all evidence that you can that supports your side of the story, especially considering the fact that schools sometimes destroy evidence early.

Be cautious about what you say during an investigation.

While the Title IX complaint is being investigated, be very cautious about your conversations with others. Even the most innocent statements can lead to further complications. When you talk to others about the case, the investigator may be able to turn those people into witnesses against you because hearsay counts as evidence. Anything you post about the case on social media or share via text can also be used as evidence against you.

Choose witnesses well.

If your defense comes down to your word against the complainant, you will probably lose your case because Title IX tends to favor the accuser. Choosing the right witnesses can make your case more believable and convincing.

Attorney-Advisor for Title IX Complaints

Even minor sexual harassment or misconduct offenses can result in suspension or expulsion under Title IX. If you're a student accused of any form of sexual misconduct, you simply have too much to lose to try defending yourself alone. Pennsylvania defense attorney Joseph D. Lento has helped more than a thousand students nationwide navigate Title IX cases with great success. He is also an experienced criminal defense lawyer and can help in those rare situations where a Title IX offense results in criminal charges. Protect your reputation and protect your future today. To learn more, call the Lento Law Firm at (888) 535-3686.